SC Administrative Law Court Decisions

Bonnie S. Talty (Talty) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 14387 Long Creek Highway, Long Creek, South Carolina. Protests were filed seeking to prevent DOR from granting the application.

In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. No dispute exists that the applicant has good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 2001). Further, the applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and occupies a principal place of abode in South Carolina. S.C. Code Ann. § 61-4-520(2) (Supp. 2001). In addition, the applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-4-520(4) (Supp. 2001). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 2001). Additionally, the applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(8) and (9) (Supp. 2001). Finally, the applicant does not owe the state or federal government delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp. 2001). Rather, the granting or denying of the permit turns upon the disputed matter of whether Talty meets the requirements of the location being proper.

Protests were filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case before the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2001), 1-23-600(B) (Supp. 2001) and 1-23-310 (Supp. 2001). The evidence and relevant factors require granting the on-premises beer and wine permit.

Does Talty meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is improper?

1. Positions of Parties

Talty asserts she meets the statutory requirements. DOR states it would have granted the permit but for the filing of protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. The protestants assert the permit should be denied since the location is not suitable.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

A. General Facts of Location

On or about August 17, 2001, Talty filed an application with DOR for an on-premises beer and wine permit. The application is identified by DOR as AI # 3202-6104. The applicant and the location were investigated by SLED and the investigating agent drew a map generally depicting the immediate area of the proposed location. Following the notices posted by SLED and by the applicant, protests were filed challenging the application and presenting this controversy. The hearing for this dispute was held Wednesday, March 13, 2002, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 14387 Long Creek Highway, Long Creek, South Carolina. The business will operate as a restaurant and bar with business hours of 11:30 a.m. until 10:00 p.m. Monday through Wednesday; 11:30 a.m. until 2:00 a.m. Thursday through Friday; 11:30 a.m. until 12:00 p.m. on Saturday, and 11:30 a.m. until 7:00 p.m. on Sunday. The operation will provide seating for 100. Meals are expected to consist of sandwiches, pasta, desserts, and prime rib offered on the weekend. A Sunday brunch is also planned.

The location is situated on approximately three acres. Parking is available on both the right and left as well as in the front of the location. The immediate area surrounding the location is generally wooded with the area across the street being a 310 acre apple orchard.

B. Specific Facts of Location

1. Statutory Proximity Factors

No churches are in the immediate area and neither are any schools in the vicinity. Indeed, the closest church is three miles away and the closest school is fourteen miles away. In general the area is rural and rustic in makeup. Overall, the area serves as an access point for individuals seeking to enjoy the scenic nature and recreational activities of the nearby Chattooga River.

Sparse housing exists in the immediate area with two residences nearby. The closest residence is 628 feet from the proposed location with the next closest residence at a distance of 800 feet. When facing the location with Highway 76 at one's back, the residence at 628 feet is on the right and the residence at 800 feet is behind the location. The residence at 628 feet is separated from the location by vegetation and a two lane paved highway, Orchard Road. The residence at 800 feet is separated from the location by a field and other vegetation. No other housing is in the immediate area.

2. Other Factors

No evidence establishes the area near the location at 14387 Long Creek Highway as being a high crime area. In fact, no records of law enforcement officials were presented to show criminal activity nor to show the presence of drug activities in the area.

Traffic in the area travels Highway 76 (Long Creek Hwy.) which fronts the proposed location and Orchard Road which is to the right when facing the location. Both Highway 76 and Orchard Road are paved two lane highways. For vehicles leaving the location, visibility to the left and right is approximately one fourth of a mile. No records of law enforcement were presented to show a history of accidents at the location.

The area is clearly rural in nature but at least two commercial establishments are nearby. The first is a white-water rafting retailer who operates within a mile of the location. The second is a gas station / convenience store approximately a half mile away. The convenience store sells beer to the public through an off-premises beer and wine permit.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

A. Law of Location Applied to Location Facts

1. Location Factors: General

Under S.C. Code Ann. § 61-4-520 (Supp. 2001), no beer and wine permit may be granted unless the location of the place of business is a proper location. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Here, the totality of the factors do not warrant denying the requested permit.

2. Location Factors: Proximity

The proximity of the location to residences, churches, schools, and playgrounds is a proper consideration. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Indeed, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or playgrounds is a proper basis for denying a beer and wine permit. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

Here, the closest church is three miles away and the closest school is fourteen miles away. Thus, no churches and no schools are in the immediate area. Likewise, no playgrounds are nearby.

As for residences, only two are in the immediate vicinity. The closest is at 628 feet and the next is at 800 feet. The residence at 628 feet is separated from the location by vegetation and a two lane paved highway, Orchard Road, and the residence at 800 feet is separated from the location by a field and other vegetation. Under these circumstances the location is not within an improper proximity to residences in the area.

3. Location Factors: Other

A proper consideration for reviewing a beer and wine permit is the impact that granting the permit will have upon law enforcement. Evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). In examining that need, a relevant consideration is whether law enforcement officers have had significant problems at or near the location. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Likewise, pertinent facts include whether the location is near other locations that have been a constant source of law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

Here, conflicting evidence exists on whether granting the permit will place an unwarranted strain upon police to adequately protect the community. On one hand the proposed location is some twelve to fifteen miles from a sheriff's substation. However, the existing police enforcement provides a conscientious patrol of the area at least once and as often as twice a day. Particularly noteworthy here as to the strain on law enforcement is the fact that the area is not a source of disturbances. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Further, no other businesses near the proposed location have presented a source of law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Thus, on the whole, the addition of a single restaurant will not place an unwarranted strain upon police to adequately protect the community.

Consideration should also be given to the extent to which the highway traffic presents a location that is heavily traveled or creates a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, again, some conflict exists. Some area residents believe the area is prone to accidents. However, both Highway 76 and Orchard Road are paved two lane highways. For vehicles leaving the location, visibility to the left and right is approximately one fourth of a mile. Further, no records of law enforcement were presented to show a history of accidents at the location. Thus, on the whole, the area is not one that presents a traffic concern of a degree that warrants denying the permit.

A valid consideration is whether the surrounding area is substantially commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, while without a doubt this area is rural, it is not devoid of commercial establishments. For example, the white-water rafting store and the gas station / convenience store are in the area.

Further, consideration may be given to whether other similar businesses already sell beer and wine within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, a gas station / convenience store sells beer for off-premises consumption. While not similar to the restaurant being proposed here, the sale of beer will not be the first in the area.

B. Ultimate Conclusion as to Location

I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to residences, schools, churches, and playgrounds. Further, other location factors do not warrant denying the permit request given the statutory requirements for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 2001). Accordingly, Talty's application seeks an on-premises beer and wine permit for a location that is a proper location.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR shall grant to Bonnie S. Talty an on-premises beer and wine permit for 14387 Long Creek Highway, Long Creek, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 4, 2002

Columbia, South Carolina